TECK RESOURCES LIMITED, TECK METALS LTD., as Guarantor and THE BANK OF NEW YORK MELLON, as Trustee FIRST SUPPLEMENTAL INDENTURE dated as of August 17, 2010 Supplemental to Indenture dated as of August 17, 2010 Creating series of Securities designated
Exhibit 99.2
TECK RESOURCES LIMITED,
TECK METALS LTD.,
as Guarantor
and
THE BANK OF NEW YORK MELLON,
as Trustee
dated as of August 17, 2010
Supplemental to Indenture
dated as of August 17, 2010
Creating series of Securities designated
3.850% Notes due 2017
6.000% Notes due 2040
TABLE OF CONTENTS
Page | |||||||||
1. | INTERPRETATIONS AND AMENDMENTS | 2 | |||||||
1.1 | 2 | ||||||||
1.2 | Definitions in First Supplemental Indenture |
2 | |||||||
1.3 | Interpretation not Affected by Headings |
2 | |||||||
2. | 2017 NOTES | 2 | |||||||
2.1 | Form and Terms of 2017 Notes |
2 | |||||||
2.2 | Issuance of 2017 Notes |
5 | |||||||
3. | 2040 Notes | 5 | |||||||
3.1 | Form and Terms of 2040 Notes |
5 | |||||||
3.2 | Issuance of 2040 Notes |
8 | |||||||
4. | OPTIONAL REDEMPTION OF NOTES | 8 | |||||||
4.1 | Redemption of 2017 Notes |
8 | |||||||
4.2 | Redemption of 2040 Notes |
9 | |||||||
4.3 | Certain Additional Definitions Relating to Redemption of Notes |
10 | |||||||
5. | CHANGE OF CONTROL | 11 | |||||||
5.1 | Change of Control |
11 | |||||||
5.2 | Certain Additional Definitions Relating to Change of Control |
13 | |||||||
6. | GUARANTEES | 15 | |||||||
6.1 | Agreement to Guarantee |
15 | |||||||
7. | GENERAL | 20 | |||||||
7.1 | Effectiveness |
20 | |||||||
7.2 | Effect of Recitals |
20 | |||||||
7.3 | Ratification of Original Indenture |
20 | |||||||
7.4 | Governing Law |
20 | |||||||
7.5 | Submission to Jurisdiction; Waiver of Trial by Jury |
20 | |||||||
7.6 | Severability |
21 | |||||||
7.7 | Acceptance of Trust |
22 | |||||||
7.8 | Counterparts and Formal Date |
22 |
THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) dated as of August 17,
2010 among TECK RESOURCES LIMITED, a corporation incorporated and existing under the federal laws
of Canada (the “Company”), TECK METALS LTD., a corporation incorporated and existing under the
federal laws of Canada, as Guarantor (the “Guarantor”) and THE BANK OF NEW YORK MELLON, a banking
corporation duly organized and existing under the laws of the State of New York, as Trustee (the
“Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of August 17, 2010 (the “Original Indenture”), providing for the issuance from time to time of
its debentures, notes or other evidences of indebtedness (hereinafter called “Securities”) in one
or more series;
WHEREAS, Sections 201, 301 and 901(8) of the Original Indenture provide that the Company and
the Trustee may from time to time enter into one or more indentures supplemental thereto to
establish the form or terms of Securities of a new series issued pursuant to the Original
Indenture;
WHEREAS, the Company desires to issue U.S.$300,000,000 aggregate principal amount of 3.850%
Notes due 2017 (the “2017 Notes”) and U.S.$450,000,000 aggregate principal amount of 6.000% Notes
due 2040 (the “2040 Notes” and, together with the 2017 Notes, the “Notes”);
WHEREAS, the Company has requested that the Trustee execute and deliver this First
Supplemental Indenture. The Company has delivered to the Trustee an Opinion of Counsel pursuant to
Sections 102 and 903 of the Original Indenture to the effect, among other things, that all
conditions precedent provided for in the Indenture to the Trustee’s execution and delivery of this
First Supplemental Indenture have been complied with. All acts and things necessary have been done
and performed to make this First Supplemental Indenture enforceable in accordance with its terms,
and the execution and delivery of this First Supplemental Indenture has been duly authorized in all
respects; and
WHEREAS, all things necessary have been done to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of
the Company, and to make this First Supplemental Indenture a valid agreement of the Company, in
accordance with the terms of the Notes and this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
1. | INTERPRETATIONS AND AMENDMENTS |
1.1 | First Supplemental Indenture |
As used herein “First Supplemental Indenture”, “hereto”, “herein”, “hereof”, “hereby”,
“hereunder” and similar expressions refer to this First Supplemental Indenture and not to any
particular Article, Section or other portion hereof and include any and every instrument
supplemental or ancillary hereto or in implementation hereof, and further include the terms of the
Notes set forth in the forms of Notes annexed as Schedules A and B hereto.
1.2 | Definitions in First Supplemental Indenture |
All terms contained in this First Supplemental Indenture which are defined in the Original
Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such
terms in the Original Indenture, unless the context otherwise specifies or requires; provided,
however, that notwithstanding the foregoing, the terms “Company” and “Trustee” shall have the
respective meanings given to them in the Original Indenture.
1.3 | Interpretation not Affected by Headings |
The division of this First Supplemental Indenture into Articles and Sections, the provision of
the table of contents hereto and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this First Supplemental Indenture.
2. | 2017 NOTES |
2.1 | Form and Terms of 2017 Notes |
There shall be and there is hereby created for issuance under the Original Indenture, as
supplemented by this First Supplemental Indenture, a series of Securities which shall consist of an
aggregate principal amount of U.S.$300,000,000 2017 Notes; provided, however, that if the Company
shall, at any time after the date hereof, increase the principal amount of 2017 Notes which may be
issued and issue such increased principal amount (or any portion thereof), then any such additional
2017 Notes so issued shall have the same form and terms (other than the date of issuance and the
date from which interest thereon shall begin to accrue and, under certain circumstances, the first
interest payment date), and shall carry the same right to receive accrued and unpaid interest, as
the 2017 Notes theretofore issued; and provided, further, that, notwithstanding the foregoing, the
Company shall not be entitled to increase the principal amount of 2017 Notes which may be issued or
issue any such increased principal amount if the Company has effected satisfaction and discharge of
the Indenture pursuant to Section 401 of the Original Indenture or defeasance or covenant
defeasance pursuant to Article 15 of the Original Indenture.
The 2017 Notes will mature, and the principal of the 2017 Notes and accrued and unpaid
interest thereon will be due and payable, on August 15, 2017, or such earlier date as the principal
of any of the 2017 Notes may become due and payable in accordance with the provisions of the
Original Indenture and this First Supplemental Indenture.
2
The 2017 Notes shall bear interest on the principal amount thereof from August 17, 2010 or
from the most recent interest payment date to which interest shall have been paid or provided for
payment on the 2017 Notes, whichever is later, at the rate of 3.850% per annum, payable
semi-annually in arrears on February 15 and August 15 (each, a “2017 Interest Payment Date”) in
each year, commencing February 15, 2011, until the principal of and premium, if any, on the
applicable series of 2017 Notes is paid or provided for payment. Interest on the 2017 Notes shall
be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest
payable, and punctually paid or provided for, on any 2017 Interest Payment Date will, as provided
in the Original Indenture, be paid to the Persons in whose names the 2017 Notes (or one or more
predecessor 2017 Notes) are registered at the close of business on February 1 or August 1 (the
“2017 Regular Record Dates”), as the case may be, immediately prior to such 2017 Interest Payment
Date, regardless of whether any such 2017 Regular Record Date is a Business Day. Any such interest
on the 2017 Notes not so punctually paid or provided for on any 2017 Interest Payment Date shall be
payable, as applicable, as provided in the form of Note annexed hereto as Schedule A to this First
Supplemental Indenture.
For purposes only of providing the disclosure required by the Interest Act (Canada), the
yearly rate of interest to which the rate payable under the 2017 Notes is equivalent is the rate
payable under the 2017 Notes multiplied by the actual number of days in the relevant calendar year
and divided by the number of days in such period. For the foregoing purposes, each year of 360 days
and the period of twelve 30-day months comprised in such year shall be deemed to commence on the
day of the month from which interest on the 2017 Notes is expressed to accrue upon the original
issue thereof.
All payments of principal of, premium, if any, and interest on the 2017 Notes will be made in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts, and all references herein to “United States dollars”, “U.S.$”
or “U.S. dollars” shall be deemed to refer to such coin or currency of the United States of
America. If any date on which principal of, premium, if any, and interest on the 2017 Notes is
payable is not a Business Day, then payment of the principal of, premium, if any, and interest on
that date will be made on the next succeeding day which is a Business Day (and without any
additional interest or other payment in respect of any delay), with the same force and effect as if
made on such date.
The principal of, premium, if any, and interest on the 2017 Notes shall be payable, and the
2017 Notes may be surrendered for exchange, registration, transfer or discharge from registration,
at the Corporate Trust Office of the Trustee in the City of New York, New York, and in such other
places as the Company may from time to time designate in accordance with the Original Indenture.
The Trustee is hereby appointed as the initial Paying Agent and Security Registrar for the 2017
Notes in the City of New York, New York.
The 2017 Notes shall be issued only as registered Global Securities, without coupons, in denominations
of U.S.$2,000 and any integral multiples of
U.S.$1,000 in excess thereof. The 2017 Notes initially will be represented by one or more Global
Securities (collectively, the “2017 Global Notes”) registered in the name of The Depository Trust
Company, as Depositary or its nominee, or a successor depositary or its nominee.
3
The certificates representing the 2017 Notes shall bear the following legend:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED
IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE
THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A
NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”
The 2017 Notes and the certificate of the Trustee endorsed thereon shall be in the form set
out in Schedule A to this First Supplemental Indenture with such appropriate insertions, omissions,
substitutions and variations as the Trustee may approve and shall be numbered in
such manner as the Trustee may approve, such approvals of the Trustee concerning any 2017 Note
to be conclusively evidenced by its certification of such 2017 Note.
4
The Security Register referred to in Section 305 of the Original Indenture shall, with respect
to the 2017 Notes, be kept at the office or agency in the City of New York, New York that the
Company may from time to time designate for such purpose (which shall initially be the Corporate
Trust Office of the Trustee in the City of New York, New York), and at such other place or places
as the Company with the approval of the Trustee may hereafter designate.
The 2017 Notes shall be subject to redemption at the option of the Company as provided in
Article 4 (Optional Redemption of Notes) of this First Supplemental Indenture and Article 11 of the
Original Indenture and repurchase by the Company as provided in Article 5 (Change of Control) of
this First Supplemental Indenture. The Company shall not otherwise be required to redeem, purchase
or repay 2017 Notes pursuant to any mandatory redemption, sinking fund or analogous provision or at
the option of the Holders thereof. The 2017 Notes will not be convertible into or exchangeable for
securities of any Person.
The 2017 Notes shall have the other terms and provisions set forth in the forms of 2017 Notes
attached hereto as Schedule A to this First Supplemental Indenture with the same force and effect
as if such terms and provisions were set forth in full herein.
2.2 | Issuance of 2017 Notes |
The 2017 Notes in the aggregate principal amount of U.S.$300,000,000 shall be executed by the
requisite officers of the Company and delivered by the Company to the Trustee on the date of issue
for authentication and delivery pursuant to and in accordance with the provisions of Section 303 of
the Original Indenture and, upon the requirements of such provisions being complied with, the 2017
Notes shall be authenticated by or on behalf of the Trustee and delivered by it to or upon the
Company Order of the Company without any further act or formality on the part of the Company. The
Trustee shall have no duty or responsibility with respect to the use or application of any of the
2017 Notes so certified and delivered or the proceeds thereof.
3. | 2040 Notes |
3.1 | Form and Terms of 2040 Notes |
There shall be and there is hereby created for issuance under the Original Indenture, as
supplemented by this First Supplemental Indenture, a series of Securities which shall consist of an
aggregate principal amount of U.S.$450,000,000 2040 Notes; provided, however, that if the Company
shall, at any time after the date hereof, increase the principal amount of 2040 Notes which may be
issued and issue such increased principal amount (or any portion thereof), then any such additional
2040 Notes so issued shall have the same form and terms (other than the date of issuance and the
date from which interest thereon shall begin to accrue and, under certain circumstances, the first
interest payment date), and shall carry the same right to receive accrued and unpaid interest, as
the 2040 Notes theretofore issued; and provided, further, that, notwithstanding the foregoing, the
Company shall not be entitled to increase the
5
principal amount of 2040 Notes which may be issued or issue any such increased principal
amount if the Company has effected satisfaction and discharge of the Indenture pursuant to Section
401 of the Original Indenture or defeasance or covenant defeasance pursuant to Article 15 of the
Original Indenture.
The 2040 Notes will mature, and the principal of the 2040 Notes and accrued and unpaid
interest thereon will be due and payable, on August 15, 2040, or such earlier date as the principal
of any of the 2040 Notes may become due and payable in accordance with the provisions of the
Original Indenture and this First Supplemental Indenture.
The 2040 Notes shall bear interest on the principal amount thereof from August 17, 2010 or
from the most recent interest payment date to which interest shall have been paid or provided for
payment on the 2040 Notes, whichever is later, at the rate of 6.000% per annum, payable
semi-annually in arrears on February 15 and August 15 (each, a “2040 Interest Payment Date”) in
each year, commencing February 15, 2011, until the principal of and premium, if any, on the
applicable series of 2040 Notes is paid or provided for payment. Interest on the 2040 Notes shall
be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest
payable, and punctually paid or provided for, on any 2040 Interest Payment Date will, as provided
in the Original Indenture, be paid to the Persons in whose names the 2040 Notes (or one or more
predecessor 2040 Notes) are registered at the close of business on February 1 or August 1 (the
“2040 Regular Record Dates”), as the case may be, immediately prior to such 2040 Interest Payment
Date, regardless of whether any such 2040 Regular Record Date is a Business Day. Any such interest
on the 2040 Notes not so punctually paid or provided for on any 2040 Interest Payment Date shall be
payable, as applicable, as provided in the form of Note annexed hereto as Schedule B to this First
Supplemental Indenture.
For purposes only of providing the disclosure required by the Interest Act (Canada), the
yearly rate of interest to which the rate payable under the 2040 Notes is equivalent is the rate
payable under the 2040 Notes multiplied by the actual number of days in the relevant calendar year
and divided by the number of days in such period. For the foregoing purposes, each year of 360 days
and the period of twelve 30-day months comprised in such year shall be deemed to commence on the
day of the month from which interest on the 2040 Notes is expressed to accrue upon the original
issue thereof.
All payments of principal of, premium, if any, and interest on the 2040 Notes will be made in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. If any date on which principal of, premium, if any, and
interest on the 2040 Notes is payable is not a Business Day, then payment of the principal of,
premium, if any, and interest on that date will be made on the next succeeding day which is a
Business Day (and without any additional interest or other payment in respect of any delay), with
the same force and effect as if made on such date.
The principal of, premium, if any, and interest on the 2040 Notes shall be payable, and the
2040 Notes may be surrendered for exchange, registration, transfer or discharge from registration,
at the Corporate Trust Office of the Trustee in the City of New York, New York, and in such other
places as the Company may from time to time designate in accordance with the
Original Indenture. The Trustee is hereby appointed as the initial Paying Agent and Security
Registrar for the 2040 Notes in the City of New York, New York.
6
The 2040 Notes shall be issued only as registered Global Securities, without coupons, in
denominations of U.S.$2,000 and any integral multiples of U.S.$1,000 in excess thereof. The 2040
Notes initially will be represented by one or more Global Securities (collectively, the “2040
Global Notes”) registered in the name of The Depository Trust Company, as Depositary or its
nominee, or a successor depositary or its nominee.
The certificates representing the 2040 Notes shall bear the following legend:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED
IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE
THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”
7
The 2040 Notes and the certificate of the Trustee endorsed thereon shall be in the form set
out in Schedule B to this First Supplemental Indenture with such appropriate insertions, omissions,
substitutions and variations as the Trustee may approve and shall be numbered in such manner as the
Trustee may approve, such approvals of the Trustee concerning any 2040 Note to be conclusively
evidenced by its certification of such 2040 Note.
The Security Register referred to in Section 305 of the Original Indenture shall, with respect
to the 2040 Notes, be kept at the office or agency in the City of New York, New York that the
Company may from time to time designate for such purpose (which shall initially be the Corporate
Trust Office of the Trustee in the City of New York, New York), and at such other place or places
as the Company with the approval of the Trustee may hereafter designate.
The 2040 Notes shall be subject to redemption at the option of the Company as provided in
Article 4 (Optional Redemption of Notes) of this First Supplemental Indenture and Article 11 of the
Original Indenture and repurchase by the Company as provided in Article 5 (Change of Control) of
this First Supplemental Indenture. The Company shall not otherwise be required to redeem, purchase
or repay 2040 Notes pursuant to any mandatory redemption, sinking fund or analogous provision or at
the option of the Holders thereof. The 2040 Notes will not be convertible into or exchangeable for
securities of any Person.
The 2040 Notes shall have the other terms and provisions set forth in the forms of 2040 Notes
attached hereto as Schedule A to this First Supplemental Indenture with the same force and effect
as if such terms and provisions were set forth in full herein.
3.2 | Issuance of 2040 Notes |
The 2040 Notes in the aggregate principal amount of U.S.$450,000,000 shall be executed by the
requisite officers of the Company and delivered by the Company to the Trustee on the date of issue
for authentication and delivery pursuant to and in accordance with the provisions of Section 303 of
the Original Indenture and, upon the requirements of such provisions being complied with, the 2040
Notes shall be authenticated by or on behalf of the Trustee and delivered by it to or upon the
Company Order of the Company without any further act or formality on the part of the Company. The
Trustee shall have no duty or responsibility with respect to the use or application of any of the
2040 Notes so certified and delivered or the proceeds thereof.
4. | OPTIONAL REDEMPTION OF NOTES |
4.1 | Redemption of 2017 Notes |
The 2017 Notes will be redeemable at any time, in whole or in part, at the option of the
Company (in the manner and in accordance with and subject to the terms and provisions set forth in
Article 11 of the Original Indenture), at a Redemption Price equal to the greater of:
(a) | 100% of the principal amount of the 2017 Notes to be redeemed; and |
8
(b) | the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 25 basis points; |
plus, in each case, accrued interest thereon to, but not including, the Redemption Date; provided
that installments of interest on 2017 Notes which are due and payable on any date falling on or
prior to a Redemption Date will be payable to the registered Holders of such 2017 Notes (or one or
more predecessor Notes), registered as such as of the close of business on the relevant 2017
Regular Record Date.
The Company will provide notice to the Trustee prior to the Redemption Date of the calculation
of the Redemption Price.
4.2 | Redemption of 2040 Notes |
The 2040 Notes will be redeemable at any time prior to February 15, 2040 (six months prior to
the Stated Maturity of the 2040 Notes), in whole or in part, at the option of the Company (in the
manner and in accordance with and subject to the terms and provisions set forth in Article 11 of
the Original Indenture), at a Redemption Price equal to the greater of:
(a) | 100% of the principal amount of the 2040 Notes to be redeemed; and |
(b) | the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 30 basis points; |
plus, in each case, accrued interest thereon to, but not including, the Redemption Date; provided
that installments of interest on 2040 Notes which are due and payable on any date falling on or
prior to a Redemption Date will be payable to the registered Holders of such 2040 Notes (or one or
more predecessor Notes), registered as such as of the close of business on the relevant 2040
Regular Record Date.
The 2040 Notes will be redeemable on or after February 15, 2040 (six months prior to the
Stated Maturity of the 2040 Notes), in whole (in the manner and in accordance with and subject to
the terms and provisions set forth in Article 11 of the Original Indenture), at a Redemption Price
equal to 100% of the principal amount of the 2040 Notes to be redeemed; plus accrued interest
thereon to, but not including the Redemption Date; provided that installments of interest on 2040
Notes which are due and payable on any date falling on or prior to a Redemption Date will be
payable to the registered Holders of such 2040 Notes (or one or more predecessor Notes), registered
as such as of the close of business on the relevant 2040 Regular Record Date.
9
The Company will provide notice to the Trustee prior to the Redemption Date of the calculation
of the Redemption Price. The Redemption Price will be calculated by the Independent Investment
Banker, and the Company, the Trustee and any Paying Agent will be entitled to rely on such
calculation.
4.3 | Certain Additional Definitions Relating to Redemption of Notes |
For the purposes of this First Supplemental Indenture, the following expressions shall have
the following meanings:
“Comparable Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
a comparable maturity to the remaining term of such Notes;
“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Company is provided fewer than
three such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations;
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the
Company;
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in writing to the Company
by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding
such Redemption Date;
“Reference Treasury Dealer” means each of Banc of America Securities LLC, Citigroup Global
Markets Inc. and X.X. Xxxxxx Securities Inc., or their respective affiliates which are primary U.S.
government securities dealers, and their respective successors; provided, however, that if any of
the foregoing or their affiliates shall cease to be a primary U.S. government securities dealer in
The City of New York (a “Primary Treasury Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer; and
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
10
5. | CHANGE OF CONTROL |
5.1 | Change of Control |
(a) Upon the occurrence of a Change of Control Repurchase Event, unless all Notes have been
called for redemption pursuant to Sections 4.1 and 4.2 hereof, the Company will be required to make
an offer to each Holder of the Notes to repurchase all or any part (in denominations of U.S.$2,000
and integral multiple of U.S.$1,000 in excess thereof) of such Holder’s Notes at a repurchase price
in cash equal to the Change of Control Payment.
(b) Within 45 days following any Change of Control Repurchase Event, or, at the Company’s
option, prior to any Change of Control, but after the public announcement of the Change of Control,
the Company shall mail, or cause to be mailed, a notice to each Holder, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the Change of Control
Repurchase Event offering to repurchase the Notes on the Change of Control Payment Date (as defined
below) specified in such notice and specifying:
(i) | if applicable, that a Change of Control has occurred and that such Holder has the right to require the Company to purchase all or a portion of such Holder’s Notes at a repurchase price in cash equal to the Change of Control Payment and that all Notes tendered will be accepted for payment; |
(ii) | the circumstances and relevant facts regarding such Change of Control; |
(iii) | the instructions, as determined by the Company, consistent with this Section 5.1, that a Holder must follow in order to have its Notes purchased; |
(iv) | the Change of Control Payment and the repurchase date, which date shall be a Business Day no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”); |
(v) | the CUSIP number for the Notes; |
(vi) | that any Note not tendered will continue to accrue interest; |
(vii) | that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date; |
(viii) | that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; |
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(ix) | that Holders will be entitled to withdraw their election referred to in clause (viii) if the Paying Agent receives, not later than the close of business on the first Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; |
(x) | that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion will be equal to U.S.$2,000 in principal amount or an integral multiple of U.S.$1,000 in excess thereof; and |
(xi) | if such notice is mailed prior to the date of consummation of the Change of Control, that the Change of Control Offer is conditioned on the Change of Control Repurchase Event occurring on or prior to the Change of Control Payment Date. |
(c) The Company shall cause the Change of Control Offer to remain open for at least 20
Business Days or such longer period as is required by applicable law. The Company shall comply with
the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and any other securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Notes as a result of a Change
in Control Repurchase Event. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 5.1, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
under this Section 5.1 by virtue of such conflict.
(d) On the Change of Control Payment Date, the Company will, to the extent lawful:
(i) | accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer; |
(ii) | deposit with the Trustee or the Paying Agent, as applicable, an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and |
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(iii) | deliver or cause to be delivered to the Trustee or the Paying Agent, as applicable, the Notes so accepted by the Company, for cancellation, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. |
(e) The Trustee or the Paying Agent, as applicable, will promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note
will be in a minimum principal amount of U.S.$2,000 and integral multiple of U.S.$1,000 in excess
thereof.
(f) The Company shall not be required to make a Change of Control Offer upon a Change of
Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this Section 5.1 applicable to
a Change of Control Offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under such Change of Control Offer.
(g) The provisions set forth in this Section 5.1 may be waived or modified with the written
consent of the Holders of a majority in principal amount of the Notes.
5.2 | Certain Additional Definitions Relating to Change of Control |
For the purposes of this First Supplemental Indenture, the following expressions shall have
the following meanings:
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect
sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation
or statutory plan of arrangement or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than to the Company or one of its subsidiaries; (2) the consummation of any transaction (including,
without limitation, any merger, amalgamation or statutory plan of arrangement or consolidation) the
result of which is that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the
Company’s Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares,
provided, that any holding company whose only significant asset is capital stock of the Company or
any of its direct or indirect parent companies shall not itself be considered a “person” or “group”
for purposes of this clause (2); (3) the Company consolidates, amalgamates, or enters into a
statutory plan of arrangement with, or merges with or into, any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act), or any person consolidates, amalgamates, or enters into a
statutory plan of arrangement with, or merges with or into, the Company, in any such event pursuant
to a transaction in which any of
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the Company’s outstanding Voting Stock or such other person is converted into or exchanged for
cash, securities or other property, other than any such transaction where the shares of the
Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are
converted into or exchanged for, Voting Stock representing more than 50% of the combined voting
power of the surviving person immediately after giving effect to such transaction; (4) the first
day on which the majority of the members of the Company’s board of directors cease to be Continuing
Directors; or (5) the adoption of a plan relating to the Company’s liquidation or dissolution.
“Change of Control Offer” means an offer to repurchase the Notes pursuant to Section 5.1
hereof.
“Change of Control Payment” means, with respect to Notes tendered pursuant to a Change of
Control Offer, an amount equal to 101% of the aggregate principal amount of the Notes repurchased
plus accrued and unpaid interest thereon, if any, to, but not including the date of repurchase.
“Change of Control Repurchase Event” means the Notes cease to be rated Investment Grade by
both Rating Agencies on any date during the 60-day period (which period shall be extended so long
as the rating of the Notes is under publicly announced consideration for a possible downgrade by
any of the Rating Agencies) (the “trigger period”) after the earlier of (1) the occurrence of a
Change of Control; or (2) public notice of the occurrence of a Change of Control or the intention
by the Company to effect a Change of Control. Notwithstanding the foregoing, no Change of Control
Repurchase Event will be deemed to have occurred in connection with any particular Change of
Control unless and until such Change of Control has actually been consummated.
“Continuing Director” means, as of any date of determination, any member of the Company’s
board of directors who:
(1) was a member of such board of directors on the date of the closing of the offering of the
Notes; or
(2) was nominated for election, elected or appointed to such board of directors with the
approval of a majority of the Continuing Directors who were members of such board of directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating categories of Xxxxx’x); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and the equivalent investment grade credit rating from any
additional Rating Agency or Rating Agencies selected by the Company.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc;
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“Rating Agency” means each of Moody’s and S&P; provided, that if any of Moody’s or S&P ceases
to rate the Notes or fails to make a rating of the Notes publicly available for any reason that is
beyond the Company’s control, the Company may select (as certified by a resolution of the Company’s
board of directors) a “nationally recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, as a replacement agency for Moody’s or S&P, or
both of them, as the case may be, that is reasonably acceptable to the Trustee.
“S&P” means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc.;
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
6. | GUARANTEES |
6.1 | Agreement to Guarantee |
6.1.1 | Guarantees |
The Guarantor hereby fully and unconditionally guarantees, on an unsecured, senior basis to
each Holder of Notes and to the Trustee and its successors and assigns (a) the full and punctual
payment of principal of, and interest and premium and Additional Amounts, if any, on the Notes when
due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under the Original Indenture and this First Supplemental Indenture with
respect to the Notes and (b) the full and punctual performance within applicable grace periods of
all other obligations of the Company under the Original Indenture and this First Supplemental
Indenture with respect to the Notes (all the foregoing hereinafter collectively called the
“Guaranteed Obligations”). The Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from the Guarantor and
that the Guarantor will remain bound under this Section 6.1 notwithstanding any extension or
renewal of any obligation with respect to the Notes. The Company hereby fully and unconditionally
guarantees the Guarantee of the Guarantor on an unsecured, unsubordinated basis.
The Guarantor waives presentation to, demand of, payment from and protest to the Company of
any of the Guaranteed Obligations with respect to the Notes and also waives notice of protest for
nonpayment. The Guarantor waives notice of any default under the Notes or the Guaranteed
Obligations. The obligations of the Guarantor hereunder shall not be affected by (1) the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against
the Company or any other Person under the Original Indenture or this First Supplemental Indenture
with respect to the Notes or any other agreement or otherwise; (2) any extension or renewal of any
thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of
the Indenture or this First Supplemental Indenture with respect to the Notes or any other
agreement; (4) the release of any security held by any Holder of Notes
or the Trustee for the Guaranteed Obligations or any of them; or (5) except as set forth in
Section 6.1.6, any change in the ownership of the Guarantor.
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The Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee.
Except as expressly set forth in Section 1502 of the Original Indenture and Sections 6.1.2 and
6.1.6 of this First Supplemental Indenture, the obligations of the Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason, including any claim
of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantor shall not be discharged or impaired
or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or
to enforce any remedy under the Original Indenture or this First Supplemental Indenture with
respect to the Notes or any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the obligations, or by any
other act or thing or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of
the Guarantor as a matter of law or equity.
The Guarantor further agrees that its Guarantee with respect to the Notes shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of or interest on any obligation with respect to the Notes is rescinded or must otherwise
be restored by any Holder of Notes or the Trustee upon the bankruptcy or reorganization of the
Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder or
the Trustee has at law or in equity against the Guarantor by virtue hereof, upon the failure of the
Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Guaranteed Obligation, the Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed
Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent
not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the
Holders and the Trustee.
The Guarantor agrees that, as between it, on the one hand, and the Holders and the Trustee, on
the other hand, (i) the maturity of the Guaranteed Obligations hereby may be accelerated as
provided in Article 5 of the Original Indenture for the purposes of the Guarantor’s Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Guaranteed Obligations with respect to the Notes guaranteed hereby, and (ii) in the event of
any declaration of acceleration of such Guaranteed Obligations as provided in Article 5, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by
the Guarantor for the purposes of this Section 6.1.1.
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The Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
6.1.1.
6.1.2 | Limitation on Liability |
Any term or provision of the Original Indenture or this First Supplemental Indenture to the
contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed
hereunder by the Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering the Indenture and this First Supplemental Indenture, as it relates to the
Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
6.1.3 | Successors and Assigns |
This Article 6 shall be binding upon the Guarantor and its successors and assigns and shall
enure to the benefit of the Trustee and the Holders and their respective successors and assigns
and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges conferred upon that party in the Indenture or this Supplemental Indenture and in the
Notes shall automatically extend to and be vested in such transferee or assignee, all subject to
the terms and conditions of the Original Indenture and this First Supplemental Indenture.
6.1.4 | No Waiver |
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article 6 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article 6 at law, in equity, by statute or otherwise.
6.1.5 | Modification |
No modification, amendment or waiver of any provision of this Article 6, nor the consent to
any departure by the Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or demand on the Guarantor
in any case shall entitle the Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
6.1.6 | Release of Guarantor |
The Guarantor will be released and relieved of its obligations under this Article 6, and the
Guarantee will be terminated, upon the Company’s request (without the consent of the Trustee) if:
17
(a) the Company notifies each debt rating agency known to it which has assigned a rating to
the applicable series of Notes and which is designated by the Commission as a “Nationally
Recognized Statistical Rating Organization” (a “Participating NRSRO”) and the Trustee of its
intention to exercise the option to terminate the Guarantee of the applicable series of Notes at
least 45 days prior to the proposed date of such termination (the “Release Date”);
(b) on the proposed Release Date, the Company delivers to the Trustee an Officers’ Certificate
stating that it has satisfied each of the four conditions listed in subsection (c) below; and
(c) at the time of such release (and any other concurrent release, termination, repayment or
discharge of any other guarantee or other debt of the Guarantor), (i) the Guarantor shall not be
the primary obligor or guarantor with respect to any Indebtedness, other than Indebtedness which in
the aggregate does not exceed an amount equal to 10% of Consolidated Net Tangible Assets, (ii) the
rating assigned to the Notes by at least two Participating NRSROs (or if there is only one
Participating NRSRO, by that one Participating NRSRO) is within one of the ratings categories
assigned by them designating “investment grade” corporate debt securities, (iii) at least two
Participating NRSROs (or if there is only one Participating NRSRO, that one Participating NRSRO)
have affirmed that the rating assigned by them to the Notes shall not be downgraded as a result of
the termination of the Guarantee, or notice thereof and (iv) no Default or Event of Default has
occurred and is continuing under the Original Indenture.
Notwithstanding the above provision, the Guarantee of the Guarantor may not be released
pursuant to the above provision if, immediately after the release, the Guarantor remains (i) a
guarantor in respect of any of the Company’s existing public debt securities outstanding on the
date hereof, or (ii) an obligor on any intercompany Indebtedness which has been pledged by the
Company for the benefit of any holders of any of the Company’s existing public debt securities
outstanding on the date hereof.
It will be an Event of Default if, at any time following release of the Guarantee, (i) the
Guarantor or any successor thereof has been for a period of not less than 30 consecutive days, the
primary obligor or guarantor with respect to Indebtedness in an aggregate amount which exceeds 10%
of Consolidated Net Tangible Assets, (ii) the Guarantor has not, within such 30-day period,
provided to the Trustee a Guarantee on substantially the same terms and conditions as the original
Guarantee that ranks pari passu with the unsecured and unsubordinated Indebtedness of the Guarantor
and (iii) on the 30th day of such 30-day period the Guarantor was a subsidiary of the Company.
In addition, the Guarantor will be released and relieved of its obligations under this Article
6, and the Guarantee will be terminated, upon the Company’s request (without the consent of the
Trustee):
(a) upon the sale or other disposition (including by way of amalgamation, consolidation,
statutory plan of arrangement or merger) of the Guarantor, including the sale or disposition of
capital stock of the Guarantor, following which the Guarantor is no longer a Subsidiary,
18
(b) upon the sale or other disposition of all or substantially all the assets (including by
way of amalgamation, consolidation, statutory plan of arrangement or merger) of the Guarantor,
(c) upon defeasance or covenant defeasance of the Notes pursuant to Article 15 of the Original
Indenture, or
(d) upon the full satisfaction of the Company’s obligations under the Original Indenture and
this First Supplemental Indenture,
unless, in the case of (a) or (b) above, immediately after the release, the Guarantor remains (i) a
guarantor in respect of any of the Company’s existing public debt securities outstanding on the
date hereof, or (ii) an obligor on any intercompany Indebtedness which has been pledged by the
Company for the benefit of any holders of any of the Company’s existing public debt securities
outstanding on the date hereof, after giving pro forma effect to such sale or other disposition
(including the application of any proceeds therefrom).
At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.
Other than in accordance with the release provisions of this Section 6.1.6, the Guarantor will
not be released from its payment obligations under its Guarantee and no amendment or waiver of
these release provisions will be permitted except, in each case, with the consent of the Holder of
each outstanding Note of the affected series.
6.1.7 | Consolidation, Amalgamation and Merger |
Unless the Guarantor has already been released, or in connection with the applicable
transaction will be released, from its obligations under its Guarantee in accordance with Section
6.1.6, the Guarantor will not consolidate or amalgamate with or merge into or enter into any
statutory arrangement with any other person, or, directly or indirectly, convey, transfer or lease
all or substantially all of its properties and assets to any person, unless:
(a) the person formed by or continuing from such consolidation or amalgamation or into which
the Guarantor is merged or with which the Guarantor enters into such statutory arrangement or the
person which acquires or leases all or substantially all of the Guarantor’s properties and assets
is organized and existing under the laws of the United States, any state thereof or the District of
Columbia or the laws of Canada or any province or territory thereof, or, if such consolidation,
amalgamation, merger, statutory arrangement or other transaction would not impair the rights of the
Holders of the Notes under the Guarantee, in any other country, provided, that if such successor
person is organized under the laws of a jurisdiction other than the United States, any state
thereof or the District of Columbia, or the laws of Canada or any province or territory thereof,
the successor person assumes the Guarantor’s obligations under the Guarantee and the Original
Indenture and this First Supplemental Indenture to pay Additional Amounts, and, in connection
therewith, for purposes of the provisions described in Section 1009 of the Indenture, the reference
to such successor jurisdiction is added with “Canada” and “Canadian” in each place that “Canada” or
“Canadian” appears therein;
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(b) the successor person expressly assumes or assumes by operation of law all of the
Guarantor’s obligations under the Guarantee; and
(c) immediately before and after giving effect to such transaction, no Event of Default and no
event which, after notice or lapse of time or both, would become an Event of Default, will have
occurred and be continuing.
7. | GENERAL |
7.1 | Effectiveness |
This First Supplemental Indenture will become effective upon its execution and delivery.
7.2 | Effect of Recitals |
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture or of the Securities except that the Trustee
represents that it is duly authorized to execute and deliver this First Supplemental Indenture,
authenticate the Securities and perform its obligations under the Original Indenture and hereunder,
and that the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate.
7.3 | Ratification of Original Indenture |
The Original Indenture as supplemented by this First Supplemental Indenture is in all respects
ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Original
Indenture in the manner and to the extent herein and therein provided.
7.4 | Governing Law |
This First Supplemental Indenture, the Original Indenture as supplemented hereby and the
Securities shall be governed by and construed in accordance with the laws of the State of New York.
7.5 | Submission to Jurisdiction; Waiver of Trial by Jury |
The Guarantor irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in The City of New York over any suit, action or proceeding arising out of or relating to
the Indenture, this First Supplemental Indenture or the Notes. The Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may have to the laying of the venue of
any such suit, action or proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in any inconvenient forum. The
Guarantor agrees that final judgment in any such suit, action or
20
proceeding brought in such a court shall be conclusive and binding upon the Guarantor and may
be enforced in the courts of Canada (or any other courts to the jurisdiction of which the Guarantor
is subject) by a suit upon such judgment, provided, that service of process is effected upon the
Guarantor in the manner specified in the following paragraph or as otherwise permitted by law;
provided, however, that the Guarantor does not waive, and the foregoing provisions of this sentence
shall not constitute or be deemed to constitute a waiver of, (i) any right to appeal any such
judgment, to seek any stay or otherwise to seek reconsideration or review of any such judgment or
(ii) any stay of execution or levy pending an appeal from, or a suit, action or proceeding for
reconsideration or review of, any such judgment.
As long as any of the Notes remain outstanding, the Guarantor shall at all times have an
authorized agent in the Borough of Manhattan, The City of New York, upon whom process may be served
in any legal action or proceeding arising out of or relating to the Original Indenture, this First
Supplemental Indenture or any Note. Service of process upon such agent and written notice of such
service mailed or delivered to the Guarantor shall to the extent permitted by law be deemed in
every respect effective service of process upon the Guarantor in any such legal action or
proceeding. The Guarantor hereby appoints CT Corporation System as its agent for such purpose, and
covenants and agrees that service of process in any such legal action or proceeding may be made
upon it at the office of such agent at 000- 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other
address in the Borough of Manhattan, The City of New York, as the Guarantor may designate by
written notice to the Trustee).
The Guarantor hereby consents to process being served in any suit, action or proceeding of the
nature referred to in the preceding paragraphs by service upon such agent together with the mailing
of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to
the address of the Guarantor set forth in the first paragraph of this instrument or to any other
address of which the Company shall have given written notice to the Trustee. The Guarantor
irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any
such service (but does not waive any right to assert lack of subject matter jurisdiction) and
agrees that such service (i) shall be deemed in every respect effective service of process upon the
Guarantor in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
law, be taken and held to be valid personal service upon and personal delivery to the Guarantor.
Nothing in this Section shall affect the right of the Trustee or any Holder to serve process
in any manner permitted by law or limit the right of the Trustee to bring proceedings against the
Guarantor in the courts of any jurisdiction or jurisdictions.
THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY.
7.6 | Severability |
In case any provision in this First Supplemental Indenture, the Original Indenture as
supplemented hereby or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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7.7 | Acceptance of Trust |
The Trustee hereby accepts the trusts in this First Supplemental Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein before set forth
in trust for the various Persons who shall from time to time be Holders subject to all the terms
and conditions herein set forth.
7.8 | Counterparts and Formal Date |
This First Supplemental Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument and notwithstanding their date of execution shall be deemed to bear
the date first above written.
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IN WITNESS WHEREOF the parties hereto have executed this First Supplemental Indenture on the
date first above written.
TECK RESOURCES LIMITED |
||||
By: | /s/ Xxxxx X. Rozee | |||
Name: | Xxxxx X. Rozee | |||
Title: | Sr. Vice President, Commercial & Legal Affairs | |||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Corporate Secretary | |||
TECK METALS LTD., as Guarantor |
||||
By: | /s/ Xxxxx X. Rozee | |||
Name: | Xxxxx X. Rozee | |||
Title: | Sr. Vice President, Commercial & Legal Affairs | |||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Corporate Secretary | |||
THE BANK OF NEW YORK
MELLON, as Trustee |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
[Signature Page for the First Supplemental Indenture]
SCHEDULE A
FORM OF 2017 NOTE
FACE OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A
NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
TECK RESOURCES LIMITED
3.850% Notes due 2017
CUSIP Xx. 000000XX0
Xx. X-0 | X.X.x000,000,000 |
TECK RESOURCES LIMITED, a corporation amalgamated and existing under the laws of Canada
(herein called the “Company”, which term includes any Successor Corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of THREE HUNDRED MILLION United States Dollars on August 15,
2017 at the office or agency of the Company referred to
below, and to pay interest thereon from August 17, 2010 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually on February 15 and
August 15 in each year, commencing February 15, 2011, at the rate of 3.850% per annum, until the
principal hereof is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be
the February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security shall
be made at the office or agency of the Company maintained for that purpose in the City of New York
at the Corporate Trust Office, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at
the option of the Company (i) payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the payee located in the United States; provided, that
principal paid in relation to any Security, redeemed at the option of the Company or upon Maturity,
shall be paid to the Holder of such Security only upon presentation and surrender of such Security
to such office of agency referred to above.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption by the Company, the Company will be required to make an offer to each Holder
of Securities to repurchase all or any part (in denominations of U.S.$2,000 and integral multiples
of U.S.$1,000 in excess thereof) of such Holder’s Securities at a repurchase price in cash equal to
101% of the aggregate principal amount of the Securities repurchased plus any accrued and unpaid
interest on the Securities repurchased to, but not including, the date of repurchase, as provided
in, and subject to the terms of, the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: |
TECK RESOURCES LIMITED |
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By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
REVERSE SIDE OF NOTE
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
August 17, 2010 (herein called the “Original Indenture”), between the Company and The Bank of New
York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), as supplemented by a First Supplemental Indenture dated as of August 17,
2010, between the Company, Teck Metals Ltd. (the “Guarantor”) and the Trustee (herein called the
“First Supplemental Indenture”, the Original Indenture as supplemented by the First Supplemental
Indenture, herein called the “Indenture”) to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Security is one of a
series designated on the face hereof limited in aggregate principal amount to U.S.$300,000,000.
The Company will pay Holders such Additional Amounts as may be payable under Section 1009 of
the Indenture.
The Securities of this series are subject to redemption upon not less than 30 or more than 60
days notice, at any time, as a whole or in part, at the election of the Company, at a Redemption
Price equal to the greater of (i) 100% of the principal amount and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon (exclusive of interest
accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis
points, plus, in each case, accrued interest thereon to, but not including, the Redemption Date.
In the event of redemption of the Securities of this series in part only, the Trustee will
select the Securities to be redeemed by a method determined by the Trustee to be fair and
appropriate.
The Securities do not have benefit of sinking fund obligations.
The Securities are also subject to redemption, in whole but not in part, at any time, at the
option of the Company, on not more than 60 nor less than 30 days’ prior to the date fixed for
redemption as provided by Section 1109 of the Indenture.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption by the Company as described above, the Company will be required to make an
offer to each Holder of Securities to repurchase all or any part (in denominations of U.S.$2,000
and integral multiples of U.S.$1,000 in excess thereof) of such Holder’s Securities at a repurchase
price in cash equal to 101% of the aggregate principal
amount of the Securities repurchased plus any accrued and unpaid interest on the Securities
repurchased to, but not including, the date of repurchase, as provided in, and subject to the terms
of, the Indenture.
The payment by the Company of the principal of and interest and premium and Additional
Amounts, if any, on, the Securities is fully and unconditionally guaranteed on an unsecured, senior
basis by the Guarantor.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
this Security and (ii) certain restrictive covenants, in each case upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company’s obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series shall terminate.
As provided for in the Indenture, the Company may, from time to time, without notice to or
consent of the Holders, create and issue additional Securities so that such additional Securities
shall be consolidated and form a single series with the Securities initially issued by the Company
and shall have the same terms as to status, redemption or otherwise as the Securities originally
issued.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each such series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and interest, if any, on this
Security at the times, place and rate, and in the coin or currency, herein prescribed.
Interest shall be computed on the basis of a 360-day year of twelve 30-day months. For
disclosure purposes under the Interest Act (Canada), whenever in the Securities of this series or
the Indenture interest at a specified rate is to be calculated on the basis of a period less than a
calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied
by the actual number of days in the relevant calendar year and divided by the number of days in
such period.
As provided in the Indenture and subject to certain limitation therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument, if any, of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of U.S.$2,000 and any integral multiple of U.S.$1,000 in excess thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this series and of like
tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
If at any time, (i) the Depositary notifies the Company that it is unwilling or unable or no
longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation and a successor depositary is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may
be, or (ii) the Company determines that the Securities shall no longer be represented by a Global
Security or Global Securities, then in such event the Company will execute and the Trustee will
authenticate and deliver Securities in definitive registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of this Security in exchange for
this Security. Such Securities in definitive registered form shall be
registered in such names and issued in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities
are so registered.
The Indenture and this Security shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in, and issued under,
the within-mentioned Indenture.
Dated: |
THE BANK OF NEW YORK MELLON, as Trustee |
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By: | ||||
Authorized Signatory | ||||
SCHEDULE B
FORM OF 2040 NOTE
FACE OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A
NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
TECK RESOURCES LIMITED
6.000% Notes due 2040
CUSIP No. 000000XX0
No. B-1 | U.S.$450,000,000 |
TECK RESOURCES LIMITED, a corporation amalgamated and existing under the laws of Canada
(herein called the “Company”, which term includes any Successor Corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of FOUR HUNDRED FIFTY MILLION United States Dollars on August
15, 2040 at the office or agency of the Company
referred to below, and to pay interest thereon from August 17, 2010 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
February 15 and August 15 in each year, commencing February 15, 2011, at the rate of 6.000% per
annum, until the principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the February 1 or August 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security shall
be made at the office or agency of the Company maintained for that purpose in the City of New York
at the Corporate Trust Office, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at
the option of the Company (i) payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the payee located in the United States; provided, that
principal paid in relation to any Security, redeemed at the option of the Company or upon Maturity,
shall be paid to the Holder of such Security only upon presentation and surrender of such Security
to such office of agency referred to above.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption by the Company, the Company will be required to make an offer to each Holder
of Securities to repurchase all or any part (in denominations of U.S.$2,000 and integral multiples
of U.S.$1,000 in excess thereof) of such Holder’s Securities at a repurchase price in cash equal to
101% of the aggregate principal amount of the Securities repurchased plus any accrued and unpaid
interest on the Securities repurchased to, but not including, the date of repurchase, as provided
in, and subject to the terms of, the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: |
TECK RESOURCES LIMITED |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
REVERSE SIDE OF NOTE
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
August 17, 2010 (herein called the “Original Indenture”), between the Company and The Bank of New
York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), as supplemented by a First Supplemental Indenture dated as of August 17,
2010, between the Company, Teck Metals Ltd. (the “Guarantor”) and the Trustee (herein called the
“First Supplemental Indenture”, the Original Indenture as supplemented by the First Supplemental
Indenture, herein called the “Indenture”) to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Security is one of a
series designated on the face hereof limited in aggregate principal amount to U.S.$450,000,000.
The Company will pay Holders such Additional Amounts as may be payable under Section 1009 of
the Indenture.
The Securities of this series are subject to redemption upon not less than 30 or more than 60
days notice, at any time prior to February 15, 2040 (six months prior to the Stated Maturity of the
Securities of this series), as a whole or in part, at the election of the Company, at a Redemption
Price equal to the greater of (i) 100% of the principal amount and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon (exclusive of interest
accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis
points, plus, in each case, accrued interest thereon to, but not including, the Redemption Date.
If the Securities of this series are redeemed on or after February 15, 2040 (six months prior to
the Stated Maturity of the Securities of this series), they may be redeemed in whole and the
Redemption Price will equal 100% of the principal amount, plus, accrued interest thereon to, but
not including, the Redemption Date.
In the event of redemption of the Securities of this series in part only, the Trustee will
select the Securities to be redeemed by a method determined by the Trustee to be fair and
appropriate.
The Securities do not have benefit of sinking fund obligations.
The Securities are also subject to redemption, in whole but not in part, at any time, at the
option of the Company, on not more than 60 nor less than 30 days’ prior to the date fixed for
redemption as provided by Section 1109 of the Indenture.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption by the Company as described above, the Company will be required to make an
offer to each Holder of Securities to repurchase all or any part (in denominations of U.S.$2,000
and integral multiples of U.S.$1,000 in excess thereof) of such Holder’s Securities at a repurchase
price in cash equal to 101% of the aggregate principal amount of the Securities repurchased plus
any accrued and unpaid interest on the Securities repurchased to, but not including, the date of
repurchase, as provided in, and subject to the terms of, the Indenture.
The payment by the Company of the principal of and interest and premium and Additional
Amounts, if any, on, the Securities is fully and unconditionally guaranteed on an unsecured, senior
basis by the Guarantor.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
this Security and (ii) certain restrictive covenants, in each case upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company’s obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series shall terminate.
As provided for in the Indenture, the Company may, from time to time, without notice to or
consent of the Holders, create and issue additional Securities so that such additional Securities
shall be consolidated and form a single series with the Securities initially issued by the Company
and shall have the same terms as to status, redemption or otherwise as the Securities originally
issued.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each such series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
Interest shall be computed on the basis of a 360-day year of twelve 30-day months. For
disclosure purposes under the Interest Act (Canada), whenever in the Securities of this series or
the Indenture interest at a specified rate is to be calculated on the basis of a period less than a
calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied
by the actual number of days in the relevant calendar year and divided by the number of days in
such period.
As provided in the Indenture and subject to certain limitation therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument, if any, of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of U.S.$2,000 and any integral multiple of U.S.$1,000 in excess thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this series and of like
tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
If at any time, (i) the Depositary notifies the Company that it is unwilling or unable or no
longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation and a successor depositary is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, or (ii) the Company determines that the Securities shall no
longer be represented by a Global Security or Global Securities, then in such event the Company
will execute and the Trustee will authenticate and deliver Securities in definitive registered
form, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of this Security in exchange for this Security. Such Securities in definitive registered
form shall be registered in such names and issued in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
The Indenture and this Security shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in, and issued under,
the within-mentioned Indenture.
Dated: |
THE BANK OF NEW YORK MELLON, as Trustee |
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By: | ||||
Authorized Signatory | ||||